Challenge to Government Secrecy Tossed Out

     (CN) – The director of national intelligence properly withheld documents related to how his office uses databases to fight terrorism, a federal judge ruled Wednesday.
     The nonprofit Electronic Privacy Information Center had filed a Freedom of Information Act request with the Office of the Director of National Intelligence regarding how the National Counterterrorism Center gets information from other federal agencies.
     Though the agency released eight partial documents, it withheld an additional 21, citing statutory exemptions. EPIC then filed suit in Washington, D.C.
     U.S. District Judge James Boasberg granted the agency summary judgment Wednesday.
     “Although at first glance the records at issue here may appear technical – and thus of little help to potential adversaries – the court, after its in camera review, is persuaded that this ‘superficially innocuous information’ could compromise intelligence operations,” the 14-page opinion states. “There is little doubt that the names of particular datasets and the agencies from which they originate would allow interested onlookers to gain important insight into the way ODNI and its partners operate.”
     EPIC submitted four FOIA requests to ODNI; the first, in March 2012, asked for a “priority list” of databases that NCTC “plans to copy.” The second, in June 2012, sought information about privacy procedures that NCTC uses when handling datasets. The third and fourth, also filed in June 2012, sought documents describing the way NCTC works with other agencies to share information.
     ODNI produced seven partially redacted pages in response to the first request. The second request prompted ODNI to release, in part, 160 pages from four different records. But the agency withheld portions of those pages. The agency’s search did not turn up any documents in response to the fourth request.
     ODNI released parts of eight documents regarding the third request. It also withheld 21 documents altogether, 11 of which are one-page documents described as “Deletion Issue Trackers.”
     These DITs describe instances in which “records in specific data-sets were possibly not deleted in time,” according to the ruling.
     Four other documents, totaling eight pages, were described as “Deletion Issue Reports,” a more detailed DITS.
     The last six documents that ODNI withheld in full – for a total of 19 pages – were “Deletion Issue Tracker Emails,” which are “like DITS but are used for less consequential issues,” Boasberg explained.
     ODNI withheld the 21 documents “because they pertain to ‘intelligence sources and methods,’ including the names of specific datasets and data-provider agencies, as well as other ‘bits of information that would provide insights into the particular sources and methods relied upon by NCTC analysts to produce terror intelligence reports, generate law enforcement investigate leads,’ and carry out other counterterrorism activities,” the ruling states.
     Exemption 3 of the National Security Act of 1947 fully protects the documents, Boasberg found. ODNI had also noted that the draft documents are “subject to change” and contain “deliberative discussions among ODNI employees regarding possible approaches to take,” “candid internal discussions” and “recommendations for actions.”
     Boasberg had reviewed the shielded documents in camera.
     “Assertions of privilege in the national-security context deserve special attention,” he wrote.
     ODNI has, “for the most part, met each of the requirements” in spelling out its rational for withholding the documents, according to the ruling.
     EPIC had argued that the “date the issue was identified, the date the records were due to be deleted, the number of records deleted, the exposure of access, and the brief description of the issue” were not properly exempt from disclosure because they are “too far afield from the intelligence community’s core mission and thus do not threaten operations.”
     But EPIC’s reading of the act “is too limited,” the judge wrote. “The Supreme Court has confirmed time and again that ‘it is the responsibility of the [intelligence community], not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the … intelligence-gathering process.”
     ODNI argued that revealing the information would assist “those who would seek to penetrate, detect, prevent or damage” NCTC intelligence operations.
     Boasberg said that even if pieces of information in the withheld 21 documents were not exempt from disclosure, the remaining information in them would amount to “an edited document with little informational value.”
     “Indeed, all that would be left would be a date here, an internal direction there,” he wrote. “Although the cost of releasing that information would be minimal, the court sees no reason to impose any further burden on the agency.”
     EPIC did not immediately respond to a request for comment.

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